Look for new FCC Chmn. Powell to act fairly early in his tenure to institute measures to improve Commission’s operations, his senior adviser Peter Tenhula said Thurs. at ComNet’s annual “Town Meeting” panel moderated by attorney Richard Wiley. Asked by Wiley what regulatory initiatives Powell would undertake first, Tenhula said question was hard to answer because Powell’s first priority may be to improve agency’s operations. He said some 80% of FCC’s agenda is “reactive instead of proactive,” such as responding to petitions for rulemaking or acts of Congress, and Powell thinks agency “should be prepared to act on those quickly and efficiently.” Nearly everyone who came in to see Powell and his staff in his first week complained about “process,” such as delays in getting action or items becoming “stuck” in pipeline, Tenhula said.
In latest round in U.S. Appeals Court, D.C., involving cancelled NextWave C-block licenses, company filed reply brief this week reiterating arguments that FCC’s cancellation of licenses for missed payment wasn’t allowed under law “and is outrageous on the facts of this case.” Oral argument in Appeals Court is set for March 15. Last year, 2nd U.S. Appeals Court, N.Y., granted FCC petition in NextWave case, concluding agency had acted as regulator and not creditor when cancelling company’s licenses. NextWave has argued that 2nd Circuit’s ruling didn’t decide merits of case, which it said was left to D.C. Circuit. “In abruptly and retroactively cancelling NextWave’s licenses, the FCC disregarded its own regulations; ignored controlling provisions of the Bankruptcy Code; and repudiated more than 18 months of its own conduct, including numerous explicit statements and in-court representations that the licenses remained in NextWave’s possession,” NextWave brief said. “The FCC’s litigation position is directly inconsistent with its past statements and conduct, which repeatedly assured NextWave, its investors and creditors that NextWave was protected by the same legal rules that Congress created for everyone,” said Theodore Olson, who will argue for NextWave in oral argument. Opponents, including CTIA, AT&T Wireless, BellSouth, CTIA, Dobson Communications, Sprint PCS, Verizon Wireless and VoiceStream, filed brief Jan. 24 weighing in on side of FCC. They argued that court lacked jurisdiction “because NextWave failed to preserve any challenge at the Commission to the automatic cancellation of its licenses.” They also contended that 2nd Circuit already had concluded that U.S. Bankruptcy Code couldn’t “trump” regulatory purview of FCC to condition licenses on timely payment. “This case is about an entity that entered an FCC auction knowing full well it would have to pay the price if it won and then simply did not pay -- hiding instead behind the bankruptcy laws,” opponents said. Meanwhile, speaking at Comnet Conference & Expo in Washington Thurs., Verizon Wireless CEO Dennis Strigl, said one reason carrier praised FCC decision Wed. to postpone 700 MHz auction until Sept. was that by then court was expected to have ruled on NextWave case. By time Aug. filing date comes around for auction, “we should know the answer to that litigation,” he said. Verizon Wireless was by far largest winner of licenses in just- completed PCS auction, for which most of spectrum up for bid came from cancelled NextWave licenses. Results of auction are conditioned on outcome of litigation, so if NextWave ultimately prevails in court, it would win back licenses that were up for auction.
As expected, FCC Common Carrier Bureau set up procedures Thurs. for its arbitration of disputed interconnection agreements between Verizon and AT&T, Cox and WorldCom (CC Docs. 00-218, 00- 249, 00-251). Among requirements: (1) Parties must schedule prefiling conference with Bureau before filing petitions for arbitration. (2) Petitions then can be filed within 30 days after conference and must include long list of information such as description of efforts to resolve differences, list of every unresolved issue, list of issues that have been resolved. FCC agreed to arbitrate after Va. State Corp. Commission declined to do so because of legal questions (CD Jan 29 p6).
Next meeting of North American Number Council (NANC) is Feb. 20-21 at FCC hq -- Cheryl Callahan, 202-418-2320 or ccallaha@fcc.gov.
Continuing his interest in privacy and wireless issues, Rep. Frelinghuysen (R-N.J.) introduced bill (HR-260) that would restrict wireless carriers’ use of information about their customers’ locations. Companies would be required to provide clear notice and get written permission from customers before collecting any information, and would have to maintain “reasonable” security procedures. FCC would have 6 months to write rules implementing law. Frelinghuysen, although not member of House Commerce Committee, this year alone has introduced bills to protect privacy of Social Security numbers (HR-91), protect general online privacy (HR-90) and prevent telemarketers from interfering with caller IDs (HR-89). His colleague from N.J., Rep. Holt (D), has introduced bill that would restrict wireless spam (HR-113).
There’s no dearth of candidates for 3 vacancies on FCC -- with more than half dozen Republicans seeking 2 spots, while members of Congress push their favorites for Democratic vacancy. Third seat opened for sure Wed. when Comr. Furchtgott-Roth announced he wouldn’t seek reappointment to term that expired June 30. One of other vacancies is that of departed Chmn. Kennard. Comr. Ness is filling other one under recess appointment.
Future of optical networks looks promising, said 4 panelists at roundtable hosted by Patricia Sabga, co-anchor of “The New Economy Watch,” CNNfn. Questions were posed to panelists, Dan Smith, pres.-CEO, Sycamore Networks; Steve Alexander, chief technical officer, Ciena; Phil Becket, vp-product development, Corvis; Dave Tolwinski, Pres. -CEO, Tenor Networks. Panel focused on business potential for companies, explored idea of “you build it, they will come.” How will technologies become profitable was answered with usual “comprehensive approach, including marketing, importance of having good customer base, having best technology, funding…” However, Smith suggested reducing FCC to 3 members. Alexander said optical networking was crucial to Internet proliferation.
Two industry groups assured FCC Wed. that they were moving forward with formation of industry council to oversee streamlined Part 68 certification process for terminal equipment. Telecom Industry Assn. (TIA) and Alliance for Telecom Industry Solutions (ATIS) were selected by FCC to form Administrative Council for Terminal Attachments (ACTA). FCC announced schedule Wed. that calls for selecting ACTA members in 90 days. TIA and ATIS said they already had held planning session and would meet deadline. Process is part of FCC’s decision to transfer to private sector Part 68 requirements aimed at making sure customer-premises equipment (CPE) doesn’t harm telephone networks or equipment. ATIS said 2 groups would keep industry up to date on progress through news releases, e-mail, Web. To get on e-mail list, contact Megan Hayes, mhayes@atis.org.
Heeding requests of some wireless carriers, FCC’s Wireless Bureau Wed. pushed back start date of 700 MHz auction to Sept. 12 from March 6. “Under the current circumstances, the bureau believes that a brief delay is warranted to provide additional time for bidder preparation and planning and for reasons of auction administration,” it said. Agency had been working against Feb. 2 filing deadline for bidders to file short-form applications to participate in 700 MHz auction.
FCC suspended its broadcast and cable EEO rules in response to court decision that rules were unconstitutional (CD Jan 17 p1). Suspension is pending Commission’s assessment of final court decision, FCC said. Comr. Tristani concurred with decision, but said agency should have suspended only filing requirements, at least until Commission petitions for rehearing.